Court-Martial Trial Practice Blog
The Case in Brief
The Navy-Marine Corps Court of Criminal Appeals decided United States v. Durbin, No. 202400333, on June 2, 2026, over a dissent. A military judge sitting alone at a special court-martial at Camp Lejeune convicted Captain Durbin, contrary to her pleas, of one specification of conduct unbecoming an officer under Article 133, UCMJ, for manually stimulating a fellow Marine officer’s penis in her truck — on divers occasions, including once in a publicly accessible parking structure sixty yards from the squadron’s hangar, during working hours, in uniform. The military judge acquitted her of extramarital sexual conduct under Article 134 and excepted some of the charged conduct. The sentence: a reprimand. Durbin raised one assignment of error — legal and factual sufficiency — and a divided panel affirmed.
The Issue That Matters: The Substantive Limits of Article 133
The fight between Judge Gannon’s majority and Senior Judge Kisor’s dissent matters far more than the result. The majority held it “per se unbecoming” for two Marine officers — one of them married — to engage in sexual activity in a public area of the base, in uniform, during working hours. The opinion grounds Article 133 in the British Articles of War of 1765, Parker v. Levy, and CAAF’s 2025 decision in Gonzalez, and it invokes United States v. Norvell for the rule that misconduct need not be seen or discovered to be unbecoming — conduct unsuited to an officer “often occurs under circumstances where secrecy is intended.”
Senior Judge Kisor would reverse. In his view, consensual sexual activity between adults in a privately owned vehicle, parked in a secluded location where no one saw it, involving neither oral sex nor intercourse, shows “lapses in judgment” — not indecency, moral turpitude, or a crime. He faults the Government for proving no nexus between the conduct and Durbin’s fitness to serve, and he warns that the majority converts Article 133 “into a tool for policing private, otherwise lawful behavior.” That dissent now exists as citable persuasive authority under NMCCA Rule 30.2, and a military defense lawyer challenging an Article 133 charge built on private conduct should put it to work.
The court’s factual sufficiency discussion deserves attention too. NMCCA hedged on its own Valencia gateway rule — assuming, after CAAF’s summary affirmance, that a broad credibility attack triggers full review — then applied United States v. Harvey and held that deference to the military judge sits “at its apogee” in a pure credibility contest. The majority also turned the defense theory against itself: Durbin asked the court to believe her accuser’s account on every fact establishing his motive to lie, except the single fact that convicted her. We explain the post-2021 factual sufficiency framework here.
Lessons for the Defense
Durbin carries a hard practical lesson about the NJP decision. The other officer accepted nonjudicial punishment, testified at a board of inquiry, and left the Marine Corps with an administrative separation — no federal conviction. Durbin, after consulting counsel, refused NJP; the command referred the case to a special court-martial, and she now carries a federal conviction, even though the adjudged sentence was only a reprimand. Refusing NJP is every accused’s right, and sometimes the correct call — but the choice demands clear-eyed advice from experienced military defense counsel about what referral risks. And because allegations involving sexual conduct reach officers through Article 133 and Article 134 as readily as through Article 120, Article 120 defense lawyers must know this terrain as well.
Experience Matters
A reprimand-only sentence still produced a court-martial conviction and a published appellate fight over what the UCMJ criminalizes. Our military defense lawyers have defended officers in Article 133 and sexual misconduct cases, and litigated appeals before every service court and CAAF, for decades. If you face charges or NJP as an officer, call Cave & Freeburg, LLP, at (703) 298-9562 or (917) 701-8961 before you decide anything.